Gunvordahl v. Knight, 9182
| Decision Date | 23 April 1951 |
| Docket Number | No. 9182,9182 |
| Citation | 73 S.D. 638,47 N.W.2d 561 |
| Parties | GUNVORDAHL v. KNIGHT et al. |
| Court | South Dakota Supreme Court |
W. W. French, Louis B. French, Yankton, for appellant.
Harold Gunvordahl, Burke, pro se.
Slaughter & Brady, Yankton, for respondent.
The defendant, First Dakota National Bank, seeks to set aside a judgment taken against it by default. The trial court refused to set the judgment aside and the bank has appealed.
We believe the judgment should be set aside. The affidavits of the parties disclose certain facts which, in our opinion, are decisive. On May 1, 1950, the defendant bank was served with a garnishment process in the action. On May 16, 1950, it was served with the summons and complaint in the principal action. The affidavit on behalf of the bank sets forth '* * * that affiant, in good faith, believed the summons and complaint herein were served pursuant to the garnishment proceedings to produce a disclosure by said Bank * * * '. Considered in the light of SDC 37.2806, which provides that the garnishee is entitled to a copy of the complaint upon demand, this belief of the garnishee is not entirely without foundation. Also it is unusual to be the garnishee and principal defendant in the same action. That this belief on behalf of the officer of the bank was at least in part induced by the plaintiff is evidenced by the fact that the garnishee summons was served upon the bank several days before the summons and complaint in the principal action.
To offset the showing made by the bank the plaintiff relies principally upon two telephone conversations between the bank officer and plaintiff's attorney. The first of these conversations related to the bank making a disclosure in the garnishment proceeding which conversation was at a time prior to default in the principal action. This conversation in no way related to the principal action and seems to us to be entirely immaterial to any present issue. The second conversation was had on June 13, several days after the bank was in default. Plaintiff's attorney advised the bank that it was in default 'and if you do not get a lawyer and put in an answer we will get a default judgment against the Bank.' This conversation was at 10:30 in the morning. In the afternoon of the same day the default judgment was entered. The day following this conversation counsel for the bank requested plaintiff to permit him to file an answer. This request was denied and this proceeding was then commenced.
The statute, SDC 33.0108, permits the court in its discretion to relieve a party from a judgment taken against him through his 'excusable neglect.' This statute contemplates neglect, the only question is whether such neglect is excusable. Obviously the term 'excusable neglect' has no fixed meaning. The question must be determined from the facts and circumstances presented in each case. The statute does give trial courts a wide discretion but it has also been established since statehood, at least, that the power given trial courts by statute should 'be exercised by them in the same liberal spirit in which the section was designed, in furtherance of...
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Uhlich v. Hilton Mobile Homes
...in furtherance of justice and in order that cases may be tried and disposed of on the merits. Fisk v. Hicks, supra; Gunvordahl v. Knight, 73 S.D. 638, 47 N.W.2d 561. An examination of the record justifies these conclusions: Defendant and its counsel acted in good faith; there is a substanti......
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...Default judgments are not favored in the courts since their effect is to prevent a trial on the merits. As recognized in Gunvordahl v. Knight, 73 S.D. 638, 47 N.W.2d 561, the term excusable neglect has no fixed meaning. When it is urged the test is whether the defendant's conduct in failing......
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United Fire & Cas. Co. v. P & C Ins. Services, Inc.
...the trial court must determine from the facts and circumstances of each case whether the neglect should be excused. Gunvordahl v. Knight, 73 S.D. 638, 47 N.W.2d 561 (1951). We have also stated that the term should be "interpreted liberally to insure that cases are heard and tried on the mer......
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